A suitable case for tweetment (Part 2)

In a recent speech on open justice the Master of the Rolls added his support to the idea of tweeting from court.

I welcome the Lord Chief Justice’s Interim Guidance on Tweeting in Courts. Without wanting to prejudge the contents of the Final Guidance, it seems to me that, subject again to proper safeguards, the advent of court tweeting should be accepted, provided of course that the tweeting does not interfere with the hearing. Why force a journalist or a member of the public to rush out of court in order to telephone or text the contents of his notes written in court, when he can tweet as unobtrusively as he can write? It seems to me, in principle, that tweeting is an excellent way to inform and engage interested members of the public, as well as the legal profession. Whatever on the outcome of the consultation, I doubt however that we will see the development of tweeting from the bench.

Giving the Judicial Studies Board Annual Lecture on 16 March 2011, Lord Neuberger of Abbotsbury MR made a number of important points about the need for judges to make the justice system more accessible to the public.

It is not the function of the courts or the judges to adjust their procedures or working practices with a view to stimulating public interest, let alone to curry favour with the public. But we have to be open to the public, and, I would suggest, we have to do everything reasonably practical to enable the public to have access so as to see what is going on in court, provided that it does not interfere with the trial process.”

From a law reporting point of view (and it is worth noting that in addition to his many other public duties Lord Neuberger sits on the Executive Committee of the Incorporated Council of Law Reporting) one of the most interesting parts of the speech was where his Lordship dealt with the question of giving judgment. He said that

If justice is seen to be done it must be understandable. Judgments must be open not only in the sense of being available to the public, but, so far as possible given the technical and complex nature of much of our law, they must also be clear and easily interpretable by lawyers. And also to non-lawyers.”

A notable example of a good judgment on these terms was, he said, that given by Lord Atkin in Donoghue v Stevenson [1932] AC 562 the well known case about the snail in the ginger beer bottle.

The alleged snail may well have been in a ‘dark opaque glass’ [bottle] but there was nothing dark or opaque about Lord Atkin’s opinion, nor was it too long or discursive: a very model of a modern major judgment.”

His Lordship went on to discuss some of the problems caused by bad judgments. Some were bad because they were “over-long, meandering, thick with digressions, obiter dicta, and needlessly complex”. Most law reporters are familiar with this type of judgment, which can be very difficult to report. But it is worth pointing out here that one of the great virtues of good law reporting is to enable such a judgment to become clear and comprehensible to readers.

Another problem was judgments being too short, for “if a judgment is too abbreviated, the judge will risk not considering the issues and previous authorities properly”. While a good law report can help tame an overlong judgment, it is much harder for the reporter to supply the deficiencies of an overshort one. That is, however, the great virtue of including, as the ICLR has done in nearly every case published in The Law Reports since 1865, a summary of counsel’s argument.

Brevity may be the soul of wit, but clarity must be the soul of the law. The difference is that between concision and precision. The problem with tweeting, of course, is that is favours concision over all other considerations. In that respect, it is probably not a good tool of clarity in law reporting. That said, let us offer once again our own tweet of that “very model of a modern major judgment”:

A manufacturer owes a duty of care and is liable in tort to the ultimate consumer of a product whose latent defect causes them injury” (133 characters): Donoghue v Stevenson [1932] AC 562.